Khaas Baat : A Publication for Indian Americans in Florida


Dilip Patel


Visa Bulletin: EB-1 Preference Categories Still Backlogged; DOS Provides Explanation and Projections

Those foreign nationals who have approved employment-based first preference (EB-1) petitions are wondering why is the category still backlogged when historically the category “re-sets” and becomes current on Oct. 1 with the start of the new U.S. fiscal year? For Indian nationals, the backlog is particularly troublesome because there have been no firm estimates on how long they can expect to wait although some calculate the wait could be upwards of 10 years!

The following is an explanation and some projections for the coming years from the Department of State. Normally, there are low levels of demand that allows for thousands of unused visa numbers from the EB-4 and EB-5 categories to become available for use in the EB-1 category. Not only have those numbers not been available in recent years, the high demand for numbers has required the application of “Final Action Dates” for all countries, and the dates for China and India have retrogressed during the past year. For FY2020, DOS does not expect that there will be any extra unused numbers available to EB-1 India and EB-1 China in the foreseeable future. Moreover, DOS predicts that there will not be any movement for EB-1 India until January 2020 at the earliest.

There are currently some 17,000 EB-1 India applicants who were interviewed, adjudicated, and now waiting for a visa to become available. Potential upgrades from EB-2 India could make EB-1 India backlogs worse. As for EB-1 China, the priority date advanced three months from October to November but that could slow down.

Because EB-1 China and EB-1 India will be subject to their per country limits in the foreseeable future, the only possibility of more rapid movement in these categories is if demand for visas in EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) falls below that which is allowed under the overall statutory annual limit. (Latest reports from USCIS, in fact, show significantly lower demand.) If this low demand trend continues, EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) could potentially return to “current” around April 2020, and as a result EB-1 India, and possibly China, would benefit from the “otherwise unused numbers” which would allow the Final Action Date to advance at a faster pace for those two countries.

While in the past, DOS was able to wait until closer to the end of the fiscal year to redistribute the otherwise unused worldwide numbers in other preference categories, allowing the India and China categories to advance, high demand in EB-3 and EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam), prevented these categories for China and India from advancing as they had historically. The result is significant pending demand particularly for India.

DHS Proposes to Change Fee Schedule and to Introduce New Forms

DHS promulgated a proposed rule that would make changes to the USCIS fee schedule by a “weighted average increase of 21 percent,” or about an 18 percent overall fee hike. The rule would also add new fees, change forms, and introduce several new forms. Some of the most common applications and petitions that would be impacted are:



I-129H1, Petition for Nonimmigrant Worker 
(Named H-1B Beneficiaries) 



I-129L, Petition for Nonimmigrant Worker for L-1



I-129O, Petition for Nonimmigrant Worker for O



I-140, Immigrant Petition for Alien Worker 



I-601A, Provisional Waiver



I-612, Waiver of Foreign Residency Requirement



I-751, Petition to Removed Conditions on Residence



I-821D, DACA Renewal



N-400, Naturalization



The rule would also impose, for the first time, a $50 fee on asylum applications. If promulgated, the United States would become the fourth country in the world that charges fees for asylum.

Included in the proposal is a relaxation of the premium processing deadline, from 15 calendar days to 15 business days. The premium processing fee was recently increased from $1225 to $1410 and now to $1440; together, this will mean slower adjudications at higher prices. Other proposals in this rule include the transfer of over $100 million in USCIS applicant fees to ICE.

Medical Screenings Discourage Asylum Seekers

Many asylum seekers who are waiting to be heard in U.S. immigration court are currently living in tent camps on the Mexico side of the U.S. border. After waiting several months in destitute conditions, they arrive to immigration court only to find that they are being turned away from attending their hearings if CBP believes any member of the family looks sick. This leads to a postponement of hearings which is a denial of due process. Medical screenings have become the latest tactic used by the CBP to discourage asylum seekers from pursuing their claims. Even worse, many who are supposedly screened before their hearings and told they have a certain ailment, are later found to have been diagnosed erroneously, forcing them to miss their court hearing.

USCIS Issues Policy Guidance on Post-Sentencing Changes

In immigration law, certain criminal acts have immigration consequences, rendering an applicant inadmissible, deportable, or ineligible for the immigration benefit being sought. USCIS issued policy guidance – and updated its USCIS Policy Manual – regarding how post-sentencing changes to criminal sentences affect convictions for immigration purposes.

An immigrant convicted of an aggravated felony is ineligible for most forms of relief or protection from removal. Notably, the INA defines an “aggravated felony” to include a “crime of violence” for which “the term of imprisonment [is] at least one year.” On October 25, 2019, the Attorney General held that a “term of imprisonment or a sentence” refers to the alien’s original criminal sentence without regard to post-sentencing alterations for reasons other than a procedural or substantive defect.

Dating back to at least 1982, the Board of Immigration Appeals (BIA) has held that a sentence modification shall be given full effect, regardless of the rationale for the modification. In other words, an individual could move to modify an imposed sentence solely to avoid immigration consequences, and that modification would be given full faith and credit by immigration courts. Not so anymore. Now, immigration courts will no longer give effect to sentence modifications made solely to avoid immigration consequences. Instead, a sentence modification must be based at least in part on a ground of procedural or substantive invalidity only for immigration authorities to give it full faith and credit.

Impact of DUI Convictions on Good Moral Character Determinations

Certain immigration benefits require an applicant to demonstrate that he or she has good moral character (GMC) in order to demonstrate eligibility for the benefit. The good moral character standard is cited throughout the INA, and is a prerequisite to eligibility for numerous forms of immigration relief. Recently, the Attorney General held that evidence of two or more DUI convictions during a relevant statutory period establishes a rebuttable presumption of a lack of GMC. An immigrant’s efforts to reform or rehabilitate him- or herself after multiple DUI convictions are considered commendable, but do not demonstrate good moral character during the period that includes the convictions. Absent substantial relevant and credible contrary evidence, two or more DUI convictions require an immigration adjudicator to deny the relief sought.

Naturalization: Conditional Bar to Good Moral Character for Unlawful Acts

USCIS is also updating its policy guidance in its Policy Manual on “unlawful acts” during the applicable statutory period that reflect adversely on moral character and may prevent an applicant from meeting the good moral character (GMC) requirement for naturalization. An applicant who has committed, was convicted of, or was imprisoned for an “unlawful act” during the applicable statutory period (three or five years, depending on the case) may be found to lack GMC if the act adversely reflects on his or her moral character, unless the applicant can demonstrate extenuating circumstances. An act is unlawful if it violates a criminal or civil law of the jurisdiction where it was committed. The regulation addressing “unlawful acts” does not require the applicant to have been charged with or convicted of the offense. Previously, the Policy Manual did not include extensive information on “unlawful acts.” This update provides additional examples of “unlawful acts,” emphasizes that USCIS officers determine whether an “unlawful act” is a conditional bar on a case-by-case basis, and provides guidance on that case-by-case analysis. The update further identifies unlawful acts that may affect GMC based on judicial precedent.

Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email dilip.patel@bipc.com

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